People v. Mary D.

California Court of Appeal Jul 16, 1979 No. Civ. 18594Published

Before: Cologne

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Holding. The court held that it is improper to use criminal contempt proceedings under Penal Code section 166, subdivision 4, to elevate a juvenile's conduct—specifically violating probation by running away—into a more serious Welfare and Institutions Code section 602 offense.

Issues

Whether a juvenile court may use criminal contempt to elevate a section 601-type offense into a section 602 offense.
Whether the use of criminal contempt to lengthen a minor's custodial confinement for violating probation conditions constitutes an impermissible 'bootstrapping' procedure.

Disposition. reversed

Quotations verified verbatim against the opinion

“it is improper to elevate a section 601, juvenile offender, to a section 602, juvenile criminal offender, through the use of a contempt of court proceeding under Penal Code section 166, subdivision 4”

“The court has used criminal contempt to contravene legislative intent, and attempted to do indirectly what it could not do directly.”

Opinion

COLOGNE, J.

By an order dated March 28, 1978, and filed April 4, 1978, Mary D. was made a ward of juvenile court after finding her guilty of vandalizing property worth under $1,000 (Pen. Code, § 594, subd. (c)). This is a misdemeanor which carries a maximum term of custodial punishment of six months. As a result of this offense, she was placed on probation for one year pursuant to standard conditions of probation for San Diego County. The order to declare a ward of Mary required that she be placed in the home of her parents and ordered her to comply with the conditions of probation.

[36]

On September 7, 1978, Mary left home without the consent of her parents and in violation of the terms of probation. She went to Texas in the company of her boyfriend Bryan W. and certain other friends. Biyan was taken into custody at about that time for auto theft and stolen credit card charges.

On September 15, 1978, a petition was filed alleging she did “willfully and unlawfully disobey Juvenile Court Order, Form 52, dated 3/28/78, by leaving her Court-ordered placement. . . without permission. . . -”

On October 10, 1978, the court made a true finding of her alleged criminal contempt and ordered her placed in the Girls Rehabilitation Facility. This appeal seeks to avoid the finding of criminal contempt and the six-month maximum term of confinement the court imposed at an October 26, 1978, hearing.

We note that since the hearing in September, Mary was, on December 20, 1978, returned to her parents and on Januaiy 30, 1979, released from wardship. The issue raised by the appeal, however, is not moot and we believe she deserves to have the propriety of this “offense” reviewed (see

In re Katherine R., 6

Cal.App.3d 354, 356-357 [86 Cal.Rptr. 281]).

At the outset, it should be observed that Mary admits violation of the terms of probation, a matter supported by the record. That fact was not before the court in these proceedings. The confinement resulting from the violation of probation in this case would warrant six months of the custodial detention and no error would be committed by continuing the wardship or detaining her at the facility for the period involved.

People v. Mary D.

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COLOGNE, J.

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